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Wednesday, July 29, 2015

by BRADEN H. BOUCEK, reposted from The Beacon Center - On the ballot right now in Nashville is a charter amendment that,
in a nutshell, would provide an employment preference for Davidson
County workers on major public works projects. By mandating that
Davidson County residents perform at least 40% of the work on publicly
funded construction, the amendment would place workers who reside
outside of Davidson County at a significant disadvantage under the law.

If the local hire amendment becomes law, it will almost certainly see
the inside of a courtroom because it has a number of constitutional
problems, as thoroughly outlined here.
One such constitutional problem is the unequal treatment of people
under the law, also known as discrimination. The expected response of
the courts is an illustrative example of both how courts have misapplied
Tennessee’s Constitution, and the importance of addressing that problem
going forward.

Both the U.S. and Tennessee Constitutions address unequal treatment
under the law. Despite the obvious differences in wording, Tennessee
courts generally think that the Tennessee and U.S. equal protection
guarantees are identical, meaning that if discriminating against
out-of-towners is OK under the U.S. Constitution, then it is OK under
the Tennessee Constitution. This is a shame. State constitutions were
expected to afford citizens greater rights than those under the federal
constitution. One that did nothing more than the U.S. Constitution would
be frivolous.

The U.S. Constitution and Tennessee Constitution were prompted by a
very different set of circumstances. The U.S. Constitution’s guarantee
of equal protection under the law was part of the Fourteenth Amendment,
passed after the Civil War to protect newly freed slaves. Tennessee’s
prohibition against “private laws,” that is, laws that benefit some
people but not others, was added in 1835, long before the U.S. got
around to guaranteeing equal treatment. It was aimed at curbing the
General Assembly’s habitual practice of passing preferential laws for
certain individuals. Frustrated by the unfairness of preferential laws
and, frankly, how time consuming it was to pass laws that just
benefitted one party, the Tennessee Constitutional Convention tried to
end the practice with this constitutional provision. The preferential
laws mentioned at the Convention were all aimed at bestowing some
financial benefit to someone, like giving them valuable liquor licenses,
fish traps, and mill dams. After the 1835 convention, if liquor was
going to be legally sold, then the legislature had to make it legal for
everyone. No more would the legislature be able to single out certain
groups for favorable treatment.

This takes us back to the local hire amendment. If the amendment
passes, Davidson County workers would be given preference under the law.
If you live in a surrounding county, you could be denied work simply
based on where you live. The amendment’s discriminatory character isn’t
hidden; discrimination is the essence of it. This would be an obvious
case of unequal treatment under the law. It creates an enormous
financial benefit for Davidson County workers who are friendlier with
the unions that are, not coincidentally, behind the amendment in the first place.
We have not come far from 1835, only instead of fish traps and liquor
licenses, here the politically connected seek to benefit from
preferences in public works projects.

Local hire may be acceptable under the U.S. Constitution, but courts
should be far more skeptical of it under the Tennessee Constitution. A
court would not scrutinize the amendment’s naked discrimination against
out-of-town residents under the U.S. Constitution (the Fourteenth
Amendment) with the same rigor that it would with racially
discriminatory legislation—an unfortunate reality, but hardly surprising
given the Fourteenth Amendment’s historical origin. But if a court was
no more rigorous in considering local hire under the Tennessee
Constitution, then it is outright disappointing. After all, it was economic
discrimination, not racial discrimination, which prompted the Private
Bill provision in the first place. Courts should be extremely wary.

Nevertheless, Tennessee courts typically rule that there is no
difference between the state and U.S. constitutions. This is bad history
that can unfortunately lead obnoxious laws that really hurt working
class people and do a disgrace to the basic right to be treated equally
under the law. Tennessee’s Constitution is not merely redundant. It was
crafted to put an end to laws that favor some at the expense of others.
Time will tell if the Tennessee Constitution will regain its historical
purpose and strength. If the local hire amendment passes, it may provide
the fodder.

Braden H. Boucek serves as General Counsel of the Beacon Center of
Tennessee. He manages in-house legal matters and litigation for the
Beacon Center, working to advance Beacon’s larger goal of promoting
freedom and opportunity in Tennessee

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